The dispute between Governor John Bel Edwards and Attorney General Jeff Landry over the retention of several private attorneys to represent the State of Louisiana, through the Department of Natural Resources (“LDNR”) in coastal loss litigation has taken a new twist. These lawsuits were filed by several parish governments alleging dozens of oil and gas companies caused marsh loss by operations that violated state-issued coastal use permits and related permitting requirements.
After these attorneys appeared as counsel for the State in one coastal loss case filed by Jefferson Parish, the Attorney General raised the lack of his approval of their contracts. On September 6, the Attorney General concluded that the contracts should not be approved in a letter sent to the Governor’s Executive Counsel.
The contract was determined to be unacceptable for three reasons. First, the Attorney General determined that the contract’s services description– “in connection with coastal land loss restoration and environmental damage remediation issues which the State may have a claim or interest,” — was too vague and overly broad. Instead, the Attorney General advised that the contract would need to be limited to “the representation of LDNR’s claims pursuant to Title 49:214.36, which is the subject of the coastal litigation.”
Second, the Attorney General took issue with the proposed fee arrangement. While noting that the contract references an hourly rate, they also included a provision that allowed subcontracted attorneys to “be paid from the gross recovery.” The Attorney General found that this provision “creates an illegal and unconstitutional contingency fee arrangement” because private attorneys hired by the State are to be paid solely on an hourly rate absent legislative approval otherwise.
Third, potential conflicts of interest were “of great concern.” The letter states that two law firms, which were subcontracted under the Governor’s contract for legal services (and could be paid from the “gross recovery” under the provision noted above), were representing local government bodies in pending or proposed coastal litigation. The Attorney General considered their representation of local government bodies to create a conflict with the State’s interest.
For now, the dispute has triggered the withdrawal of private counsel but whether this issue will arise again remains to be seen.
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